Moving With Your Children After Divorce
In today’s world, an issue which arises frequently is that of moving with the children after your Parenting Agreement has been finalized in a Decree of Dissolution of Marriage. Generally speaking, a parent has the right to move, and often must do so after the Decree for one reason or another. This is not usually a problem if you remain in the general area, although choice of schools can become an issue. A problem can arise, however, when the parent with whom the child spends most time wants to move such a distance as to make the existing parenting time schedule difficult, if not impossible, to maintain.
States are required to balance the best interests of the child with the constitutional right of a person to move freely. Different states deal with this in different ways. Some place no limit on a parent’s movement so long as he/she remains within the state. Some have a statutory mileage limit within which one can move without either permission from the Court or the other parent. Colorado law takes a different approach, requiring permission from the Court or the other parent when “{T}he party with whom the child resides a majority of the time is intending to relocate with the child to a residence that substantially changes the geographic ties between the child and the other party”. C.R.S. 14-10-129. The statute lists a number of factors for the Court to consider in determining whether such a request is in the best interest of a child. These include the existing relationship between the child and the other parent, the reason for move, the availability of a reasonable parenting schedule, among others.
The Colorado Supreme Court has determined that each party has an equal burden to convince the court of their position. This means there is no presumption in favor of being able to move with the children, or in favor of preventing the move. What has not been decided is exactly what constitutes a substantial change in geographic ties. How far does the move have to be? Does an increase in transportation time between homes constitute a geographic change? If so, how much would it have to increase? These questions remain open.
The trial court judge has discretion to determine whether a proposed move constitutes such a significant geographic change as to require judicial approval. A recent case involved a parent’s move from Broomfield to Nederland. The move kept the child in the same school district (Boulder Valley), and was only 30 miles. However, the drive time between the parent’s houses increased from 10 minutes to 40 minutes. The Court indicated that this might be significant geographic change. Although the case settled before the issue was ruled upon, it illustrates the problem. One judge might find such a move does not present a significant geographic change by focusing on the fact that the child was still in the same school district. Another might find the opposite, by focusing on the 400% increase in drive time.
Once a Court determines that the move is a significant geographic change, the statutory factors of C.R.S. 14-10-129 are applied to the specific facts of the case at hand. Of course, the facts of each case vary considerably from one another. Additionally, the Court is required to consider the “best interest” factors of CRS 14-10-124. This results in the Court having 19 different factors to take into account, making this a very “fact intensive” type of litigation. This kind of litigation tends to be very expensive, involving experts and a great deal of discovery.
There is one ‘non-legal’ factor that can make these situations more difficult than most to resolve. Consider that the moving parent usually has a valid and compelling reason to move, And that the other parent usually has a very understandable and valid reason to not want his/her child to move away. It can set parents who had previously been friendly and cooperative with each other at odds; after all, the prospects of having your child move away, or of moving away from your child, are among the most difficult to imagine.
For this last reason, if for no other, it is important that the parent who intends to move consider all the options, especially how he/she can facilitate the ongoing relationship with the other parent after the move. It is equally important that the non-moving parent give consideration to possible circumstances under which he/she could agree to the move. You, as parents, are in a much better position to resolve the many issues raised by the move than is the Court. You can better take into account the specific needs of your children; you can avoid the high cost of experts and a trial; you can avoid the possibility of bitter results from a trial which can have the unfortunate and long lasting side effect of doing irreversible damage to a once cordial co-parenting relationship.
A good attorney will help you do this, giving you honest advise, rather than cheer-leading optimism, about the likelihood of success in Court. He can help you to be creative in exploring a solution with which you both can live. Even if the attempt at amicable resolution fails, and you have to seek a judicial determination, you will both have the knowledge that you and your ex-spouse made an earnest effort. That can make a big difference to your future relationship.